End User License Agreement
This End User License Agreement ("EULA”) is entered into by and between ServiceTitan, Inc. and the party identified in an End User License Agreement Acknowledgement (“Franchisee”). The terms “ServiceTitan,” “we,” “us,” and “our” refer to ServiceTitan, Inc. and its Affiliates. The terms "Franchisee," "you," or "your" refer to Franchisee.
This EULA is a binding legal agreement between you and ServiceTitan regarding your use of the Service. Please read this EULA carefully. By installing or using the Services you agree and accept to be bound by this EULA and agree to use the Service in compliance with it.
Ace Handyman Franchising, Inc. (“Ace”) is a franchising company that sells and grants franchises for the operation of businesses that provide a variety of handyman, repair, and maintenance services for customers' homes and businesses such as carpentry, plumbing and electrical, drywall, painting, roofing, flooring, landscaping and other miscellaneous repair and maintenance services ("Handyman Businesses").
Franchisee is a franchisee of Ace pursuant to a Franchise Agreement ("Franchise Agreement") between Franchisee and Ace.
ServiceTitan, Inc. offers a proprietary online platform for field service business management (the "Service") to which Ace subscribes pursuant to a Master Services Agreement (“Agreement”) between Ace and ServiceTitan,) and to which Participating Franchisees subscribe pursuant to End User License Agreements.
Franchisee wishes to enter into this EULA with ServiceTitan for the purpose of using the Service to operate and manage its Handyman Business; and ServiceTitan wishes to allow Franchisee to use the Service, all in accordance with the terms of this EULA.
For purposes of this EULA, the following terms shall have the meanings set forth below. All other capitalized terms are defined herein and shall have the same meanings throughout the EULA, including order summaries, addenda, appendices, exhibits, and attachments. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular. A reference to a statute, statutory provision, or regulation is a reference to it as amended, extended or re-enacted from time to time. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceded by those terms. Section headings such as "Term and Termination" and "Indemnification" are used to identify and cross-reference the provisions of the referenced sections.
"Affiliate” means any entity that, directly or indirectly, controls, is controlled by, or is under common control of the subject entity. "Control" means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity. For the avoidance of doubt, Participating Franchisees are not Ace’s Affiliates.
“Franchisee” means an entity with which Ace has an agreement ("Franchise Agreement") pursuant to which: (i) such entity has a license to use a brand owned or licensed by Ace in the operation of a franchised business; and (ii) the entity undertakes to conduct its primary business in accordance with methods and procedures prescribed by Ace.
"Order Summary" means the order form which describes the features of the Service to be subscribed to by Ace pursuant to the Agreement including commercial terms such as features, pricing, and term.
“Participating Franchisee” means a Franchisee with which ServiceTitan has entered into a EULA for the Service.
"Professional Services" means the professional services provided by ServiceTitan with respect to implementation and configuration of the Service, all as described on an Order Summary and/or in a Statement of Work for Professional Services ("SOW").
"Service" includes all features of the Service as subscribed to pursuant to an Order Summary, including without limitation the Mobile App and any Updates.
"ServiceTitan Technology" means all proprietary technology belonging to or used by ServiceTitan to provide the Service (including software, hardware, products, processes, algorithms, application programming interfaces ("API's"), techniques, designs and other tangible or intangible technical material or information), including any Updates.
"Updates" means all new versions, releases, updates, and enhancement of the Service that ServiceTitan makes available to its customers generally, and which ServiceTitan will make available at no charge within 30 days of their general availability.
3. Subscription Rights
(a) Franchisee's Subscription Rights. ServiceTitan hereby grants to Franchisee a limited, non- transferable, non-sublicensable and non-exclusive right ("Subscription") to access and use the Service.
Your use of the Service is limited in each case solely to the number of Authorized Users such as Managed Tenants and Managed Technicians that does not exceed the number of paid subscriptions described in an Order Summary.
(b) Relationship among ServiceTitan, Ace, and Franchisee. ServiceTitan acknowledges and agrees that that (i) Ace as subscriber to the Service under the Agreement and franchisor of Franchisee does not control Franchisee; (ii) Ace and its Affiliates shall have no liability to ServiceTitan for the acts and omissions of Franchisee; and (iii) it shall look solely to Franchisee and not to Ace or its Affiliates for all claims arising hereunder.
(c) Ownership. ServiceTitan reserves all rights not expressly granted to you in this EULA. Without limiting the generality of the foregoing, you acknowledge and agree that any implementation, customization, configuration or deployment of the Service for you shall not affect or diminish ServiceTitan’s rights, title, and interest in and to the Service and the ServiceTitan Technology. As between the parties, ServiceTitan and its licensors, suppliers and customers retain all worldwide right, title and interest in and to the Service and the ServiceTitan Technology, including all worldwide intellectual property rights therein, and ServiceTitan solely and exclusively owns all right, title and interest therein and thereto, and to all derivative works or enhancements thereof, including but not limited to all worldwide intellectual property rights therein. You shall not act in any manner inconsistent with such ownership. You shall not at any time produce any copies of the ServiceTitan Technology for any reason.
(d) Feedback. If You suggest any new features, functionality, or improvements to the Service (“Feedback”), you acknowledge that all Feedback and products or services incorporating such Feedback are the sole and exclusive property of ServiceTitan, and you hereby irrevocably assign to ServiceTitan all intellectual property rights and all other rights and title to Feedback.
(e) Trademarks. The ServiceTitan name and logos are trademarks and service marks of ServiceTitan (collectively the “ServiceTitan Trademarks”). Other third-party company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to ServiceTitan. Nothing in this Agreement or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the ServiceTitan Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of ServiceTitan Trademarks will inure to ServiceTitan's exclusive benefit.
(f) Early Access. If you obtain a subscription to a new feature or add-on to the Service designated by us as “Preview”, “Beta”, “Early Access” or “Evaluation Services” (“Early Access Service”), notwithstanding any other terms to the contrary, you may use such Early Access Service only for your internal demonstration, test, or evaluation purposes. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS EULA AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES AND OTHER KINDS OF PROMISES, EXPRESS OR IMPLIED, FOR EARLY ACCESS SERVICES AND THEY ARE PROVIDED ON AN “AS IS” BASIS. EARLY ACCESS SERVICES HAVE A NON-PERPETUAL TIME-LIMITED SUBSCRIPTION TERM AND WE MAY “TIME-OUT” AND DISABLE THE EARLY ACCESS SERVICES OR OTHERWISE DISCONTINUE ACCESS AND USE OF THE EARLY ACCESS SERVICE AT ANY TIME WITHOUT PRIOR
NOTICE. You may not attempt to defeat or circumvent any duration mechanism for the Early Access Service and may not use any Early Access Service beyond the prescribed term of early access. Use of an Early Access Service may be subject to additional terms and conditions that you must agree to when accessing the Early Access Service.
(g) Eligibility. All users must be at least the age of majority in the jurisdiction in which such users live (which in most jurisdictions is either 18 or 19 years of age) to use the Service. By entering into this EULA, you represent and warrant to us that: (a) your users are at least the age of majority in the jurisdiction in which they live; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
(h) Accounts; Authorized Users. Each of your users must register for and maintain an account with us to use the Service. When registering, your users must provide accurate and complete information and promptly update this information. If a user purposely provides any information that is inaccurate or incomplete, or we have reason to believe that the information is inaccurate or incomplete, we may suspend such account upon prior notice to you. Only your employees or contractors who are authorized to access the Service using a user identifier and password provided to you by us or setup by you (“Authorized Users”) may use your account to access and use the Service and conduct other activities with us. You are responsible for all activities that occur through your account. Each Authorized user must keep their user identification and password secure in order to protect your account from unauthorized use. You must notify us immediately of any unauthorized use of your account or any other breach of security. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through you, you must take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by ServiceTitan to prevent or terminate unauthorized use of the Service. Certain features or functionality of the Service may only be accessed or used by a certain type of Authorized User and access to such features and functionality may be subject to specific limits set forth in the Order Summary. We reserve the right to prevent or limit usage of the Service in excess of such limits. ServiceTitan’s direct competitors (or third party agents acting on behalf of such direct competitors) are prohibited from accessing the Service.
(i) User Types.
(i) Managed Tenant. For the purposes of this EULA and any Order Summary, a “Managed Tenant” is defined as a Franchisee with a single tenant within the Service who has executed a EULA and has implemented the Service and is subject to any limitations on the number or type of Managed Technicians per Managed Tenant set forth in an Order Summary. Each addition of a new Managed Tenant will contribute to Ace’s overall Minimum Subscription Quantity as set forth in any Order Summary and subject to applicable limitations set forth in any Order Summary.
(ii) Managed Technicians. For the purposes of this EULA and any Order Summary, a “Managed Technician” means a natural person affiliated or associated with the business of a Franchisee or under the direction of a Franchisee who: (i) is assigned sole or primary responsibility for performing a customer job by her/himself, (ii) who functions in a leadership role for an install crew or (iii) to whom or to whose activities revenue can otherwise be attributed. Any individual that is designated as a Managed Technician cannot be designated otherwise: (i) before the end of the subscription period in which he or she was so designated and (ii) without the approval of ServiceTitan. You as Franchisee may not, and must ensure that your respective Managed Technicians do not, share accounts with each other or any other individuals. You are responsible for ensuring that Managed Technicians (or anyone else using your accounts or the accounts of your Managed Technicians) comply with the terms of this EULA. Deactivation of an individual as a Managed Technician will result in such individual being unassigned from all jobs and removed from reporting functionality. Should the number of Managed Technicians under any Managed Tenant exceed the total number of permitted Managed Technicians per Managed Tenant as set forth in the applicable Order Summary, Ace will be charged for such additional Managed Technicians as per the terms of the applicable Order Summary.
4. Term and Termination
(a) Term. The term ("Term") of this EULA commences upon its Effective Date and shall continue until the earlier of the following: (i) the Agreement expires or is terminated; (ii) the Franchise Agreement expires or is terminated; or (iii) this EULA is terminated as provided herein.
(b) Termination. Either party may terminate this EULA if the other party materially breaches this EULA and does not cure the breach within sixty (60) days of receiving written notice thereof; provided, however, that if the breaching party has diligently attempted to cure the breach during such sixty (60) day period but the breach is incapable of cure by the end of such sixty (60) day period, the non- breaching party may not terminate this EULA so long as the breaching party continues to diligently attempt to cure the breach and such breach is cured in any event within an additional thirty (30) day period following the initial sixty (60) day period described herein.
(c) Suspension. We may, immediately upon notice to you, suspend your access to the Service for any of the following reasons: (i) you hack or attempt to hack the security mechanisms of the Service or we otherwise determine that your use of the Service poses a security risk to us or to another user of the Service; (ii) you introduce a malicious program into the network or a virtual machine instance; (iii) you cause network interference that affects Service performance for other customers; (iv) you use the Service in a way that we determine, in good faith and in our reasonable discretion, is abusive or disrupts or threatens the performance or availability of the Service; or (v) we receive notice or we otherwise determine, in our sole discretion, that you may be using the Service for an illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party.
The parties acknowledge and agree that the foregoing conditions relate solely to Franchisee's use of the Service and not to use by Ace of the Service, which usage is governed exclusively by the Agreement. In the event ServiceTitan in good faith believes you are in violation of terms similar to the foregoing contained in a EULA, ServiceTitan shall promptly provide Ace with notice of the same in order to allow Ace an opportunity to engage with you to explore resolution thereof. Such notice to Ace shall be provided in conjunction with notice to you described in the preceding paragraph.
(d) A party may terminate this EULA upon written notice if the other party ceases to do business, becomes insolvent, goes or is put into receivership or liquidation, passes a resolution for its winding up or for any of the foregoing, makes an arrangement for the benefit of its creditors, or enters into bankruptcy, moratorium, or any other proceeding that relates to insolvency or protection of creditors’ rights.
(e) Termination of the Agreement. The parties hereto acknowledge and agree that Ace and ServiceTitan reserve the right to terminate the Agreement consistent with the provisions thereof and in the event of such termination Franchisee shall terminate this EULA and cease all use of the Service, provided, however, that Franchisee may continue to use the Service in connection with the provisions of the Agreement relating to Transition Assistance.
5. Fees and Payment
If Franchisee uses the Service as purchased by Ace pursuant to the Agreement and any Order Summary thereunder, then Franchisee is not liable for payment of any fees to ServiceTitan hereunder.
6. Service and Support Level Agreement
ServiceTitan will operate the Service and provide Support in accordance with its obligations described in the Service and Support Level Agreement ("SLA") incorporated by reference into the Agreement.
7. Access to the Service; Updates
We do not provide you with the equipment to access the Service. You are responsible for all fees charged by third parties to access the Service (e.g., Internet access charges). You agree and acknowledge that ServiceTitan may supply Updates from time to time, in its sole discretion, at no cost to you.
Franchisee must comply with all applicable laws, including privacy laws, when using the Service including the ServiceTitan Technology. Except as may be expressly permitted by applicable law or authorized by us in writing, Franchisee will not:
(a) use the Service or ServiceTitan Technology for any illegal purpose or in violation of any local, state, or national law;
(b) harass, threaten, demean, embarrass, or otherwise harm any other user of ServiceTitan Technology;
(c) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
(d) use the Service or ServiceTitan Technology in violation of any advertising and marketing laws such as CAN-SPAM, the Telephone Consumer Protection Act, applicable call recording statutes, the FTC’s Telemarketing Sales Rule, Canada’s Anti-Spam Legislation (CASL) and the CRTC Unsolicited Telecommunications Rules, including but not limited to those that relate to (i) permitted calling times; (ii) customers’ consent to be contacted by telephone and/or text messages (including opt in/opt out consent where applicable and do not call lists); (iii) the required content of text messages and requirements for promptly implementing unsubscribe requests; (iv) any registration requirements relating to do not call lists; and (v) any notices that need to be given to potential customers during telephone calls;
(e) import or transfer to ServiceTitan Technology any data that is sensitive financial information (including credit card numbers), health information, medical information, pharmaceutical information, information regarding children under 13 years of age, or other sensitive or regulated information (for example, Social Security Numbers);
(f) interfere with security-related features of ServiceTitan Technology, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of ServiceTitan Technology except to the extent that the activity is expressly permitted by applicable law;
(g) interfere with the operation of ServiceTitan Technology or any user’s enjoyment of ServiceTitan Technology, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of ServiceTitan Technology; (iii) collecting personal information about another user or third party without required consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide ServiceTitan Technology;
(h) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other Service account without permission;
(i) sell or otherwise transfer the access granted under this EULA or any right or ability to view, access, or use ServiceTitan Technology; or
(j) attempt to do any of the acts described in this Section or assist or permit any person in engaging in any of the acts described in this Section.
9. Franchisee Data; Data Governance
(a) For purposes of this EULA, “Franchisee Data'' means electronic data or information submitted to the Service by Franchisee or any Authorized User or directly created by any such person for Franchisee’s use in connection with the use of the Service. Franchisee Data does not include non- identifiable aggregated data compiled by ServiceTitan in connection with Franchisee’s use of the Service. You may upload Franchisee Data to the Service and link other services to the Service to integrate your Franchisee Data from those other services. In addition, we may collect registration and other information about your use of the Service. You hereby grant us a limited, non-exclusive, non-sublicensable (except to service providers and subcontractors providing services to ServiceTitan), transferable, worldwide, royalty-free, perpetual, irrevocable license to use, reproduce, modify, transmit, distribute and otherwise exploit all such information: (i) internally in any way subject to ServiceTitan’s obligation of Confidentiality; and (ii) internally or externally in any way in aggregate or anonymous format or otherwise in conformity with the Data Privacy Agreement.
(b) You may only upload text, photographs, videos, or other audiovisual or informational content (collectively, “Content”) to the Service if you own the rights to that Content, or if another rights holder has given you permission.
(c) Upon prior written consent of Franchisee in each case, you agree that ServiceTitan may use your name, logo and marks to identify you as a ServiceTitan customer on ServiceTitan’s website and in marketing materials.
(d) ServiceTitan agrees to comply with the Data Privacy Agreement and Information Security Agreement incorporated by reference into the Agreement.
10. Consent to Data Access
You irrevocably consent to ServiceTitan permitting Ace to have access to certain of your data in connection with the Service and consistent with Ace's obligations under the Agreement and the Franchise Agreement.
(a) Specifically, Ace may request from ServiceTitan (and ServiceTitan may provide) operational access to information that you input into the System or develop on the System in or with respect to accounts related to your Handyman Business, including, but not limited to customer data, transaction data and operational and financial data about your Handyman Business (the “Data”). Such access may take place with or without notice to you.
(b) Further, Ace may request from Service Titan (and ServiceTitan may provide) administrative access to your ServiceTitan user account related to your Handyman Business, to export, transfer or grant access to your account or to data associated with such account(s) or your Handyman Business, to suspend such account(s) or your access to the Service for your Handyman Business or, in connection with a termination of the Franchise Agreement, to terminate or delete your ServiceTitan account(s) related to your Handyman Business. You consent to all such access and actions by Ace and agree that you will not seek any mass export of your Data with respect to your Handyman Business(es) without the written consent of Ace. You agree to indemnify, defend, and hold ServiceTitan harmless from any and all claims arising out of or related to this Section.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
Your Confidential Information includes any non-public information or material you upload to the Service. ServiceTitan's Confidential Information includes the ServiceTitan Technology, and the terms and conditions of this EULA, any Order Summaries, purchase orders and other ordering documentation (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. ServiceTitan will provide Confidential Information and proprietary materials in the course of implementation, including, but not limited to, guides, documentation, product descriptions and configuration tools (the "Materials"). You agree that the Materials are Confidential Information proprietary to and owned by ServiceTitan.
Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Recipient prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Recipient without use of or reference to the Disclosing Party’s Confidential Information.
(b) Non-Use and Non-Disclosure of Confidential Information. Recipient will not use or disclose any Confidential Information for any purpose except to perform its obligations or exercise its rights under this EULA or, as it relates to ServiceTitan, the Agreement. Except as expressly permitted herein, ServiceTitan will not disclose your Confidential Information to any third party, without your consent, including information about the pricing of the products and services that you may sell and/or promote through the Service. Notwithstanding the foregoing, your consent to such disclosure shall be deemed given: (i) in the event you access the Service or your Franchisee Data through a third party application, solely with respect to disclosure in connection with your use of such third party application; and (ii) with respect to any third parties ServiceTitan utilizes to provide any portion of the Service, such as subcontractors.
If Recipient is required by law to disclose Disclosing Party Confidential Information, Recipient will, to the extent legally permissible, make reasonable efforts to provide Disclosing Party prompt written notice of that requirement prior to disclosure and an opportunity to seek a protective order.
(c) Protection of Confidential Information. Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use or disclosure of the Confidential Information of Disclosing Party. Without limiting the foregoing, Recipient (i) shall take at least those measures that it employs to protect its own confidential information of a similar nature (but in no event less than a commercially reasonable standard of care) and (ii) shall ensure that the Affiliates, directors, officers, employees, contractors, agents, accountants, attorneys and other professional advisors of Recipient (“Representatives”) who have access to Confidential Information of Disclosing Party are subject to obligations of nondisclosure and nonuse at least as protective of Disclosing Party’s Confidential Information as the provisions of this EULA, prior to any disclosure of Confidential Information to such Recipients. The Recipient shall reproduce Disclosing Party’s proprietary rights notices on any copies made by the Recipient in the same manner in which such notices were set forth in or on the original Confidential Information.
12. Representations and Warranties; Disclaimers
(a) Each party represents and warrants to the other party that:
(i) It has the full power and authority to enter into this EULA and to perform its obligations hereunder; and
(ii) Entering into this EULA, and performing its obligations hereunder, does not violate or conflict with any of its obligations under any agreement with any third party, or with any law, rule, or regulation.
(b) Service Titan represents and warrants to Franchisee that:
(i) The Service will during the Term materially conform to any description of the Service published by ServiceTitan including without limitation in the Materials, and the Professional Services will be performed by suitably qualified personnel in a workmanlike and professional manner in accordance with generally accepted industry standards; and with respect to any nonconformity of the Service or the Professional Services with the foregoing (each a "Nonconformity"), ServiceTitan will make commercially reasonable efforts promptly to correct any Nonconformity or re-perform any non-conforming Professional Services within thirty (30) calendar days after written notice thereof;
(ii) It has all rights necessary to offer and provide the Service, including all rights to grant the license to Franchisee and enter into the EULAs as set forth herein;
(iii) It is either the owner of, or authorized to use, any and all software and the ServiceTitan Technology used by ServiceTitan to provide the Service; and
(iv) No portion of the Service contains any "Harmful Code," meaning any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner, any computer, software, firmware, hardware, system, or network; or (b) prevent access to or use of the Service as intended by this EULA; but excluding any means by which ServiceTitan may, in accordance with the terms of this EULA, prevent access to or use of the Service by Franchisees .
(c) Franchisee represents and warrants to ServiceTitan that Franchisee:
(i) will not upload or request that ServiceTitan import any information (including personal information) to the Service unless Franchisee has all consents, permissions and licenses necessary to do so, and
(ii) will authorize ServiceTitan’s collection, use, disclosure and retention of that information in accordance with this EULA.
(d) Disclaimer of Warranties. EXCEPT AS STATED IN THIS EULA, THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SERVICETITAN DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES AND PROMISES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (i) ANY IMPLIED REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SERVICETITAN DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, AND, EXCEPT AS OTHERWISE SET FORTH HEREIN, SERVICETITAN DOES NOT WARRANT THAT ANY SUCH ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR SERVICETITAN, INCLUDING SERVICETITAN’S OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AFFILIATES, AND SUBSIDIARIES (TOGETHER, THE “SERVICETITAN ENTITIES'') OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE REGARDING ANY OF THE SERVICETITAN ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS EULA. YOU UNDERSTAND AND AGREE THAT YOU AND YOUR FRANCHISEES USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST
EXTENT PERMITTED BY LAW. ServiceTitan does not disclaim any warranty or other right that ServiceTitan is prohibited from disclaiming under applicable law.
13. Limitations of Liability
(a) Liability Caps.
(i) EACH PARTY’S MAXIMUM AGGREGATE LIABILITY SHALL BE UNLIMITED FOR ALL CLAIMS ARISING FROM A PARTY'S FRAUD OR WILLFUL MISCONDUCT (AND FOR THE AVOIDANCE OF DOUBT, THE LIMITATIONS SET FORTH IN SUBSECTION II BELOW DO NOT LIMIT LIABILITY TO THE EXTENT THAT A CLAIM ARISES UNDER THIS SUBSECTION I).
(ii) EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ALL OTHER CLAIMS OF ANY KIND (WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) FOR ALL LOSSES OR DAMAGES ARISING OUT OF OR RESULTING FROM THIS EULA OR FROM THE PERFORMANCE OR BREACH HEREOF, INCLUDING WITH RESPECT TO INDEMNIFICATION OBLIGATIONS, WILL NOT EXCEED THE AMOUNT OF FEES PAYABLE BY ACE UNDER ANY ORDER SUMMARY RELATIVE TO THIS EULA WITH RESPECT TO FRANCHISEE IN THE TWELVE (12) MONTH PERIOD THAT IMMEDIATELY PRECEDES THE EVENT OR CIRCUMSTANCE WHICH GIVES RISE TO THE CLAIM OF LIABILITY.
(b) Damage Exclusions.
IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, OFFICERS, DIRECTORS, AGENTS, OR EMPLOYEES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING OUT OF ANY BREACH OF THIS EULA, INCLUDING DAMAGES FOR LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE DO NOT APPLY TO LIABILITIES ARISING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY OBLIGATIONS, FRAUD, OR WILLFUL MISCONDUCT.
EACH PROVISION HEREOF THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES HEREUNDER. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(a) Each party (“Indemnifying Party”), at its own Expense (as defined herein), agrees to defend the other party including its Affiliates, officers, directors, agents, and employees (“Indemnified Parties”), through final judgment or settlement, against all third-party claims, actions, or suits against the Indemnified Parties ("Claims") that (a) were caused by any negligent act or omission or willful misconduct of the Indemnifying Party or (b) arose from any breach of this EULA by the Indemnifying Party. The Indemnifying Party will indemnify and hold the Indemnified Parties harmless from and against all damages, Expenses, and costs, including reasonable attorneys’ fees, finally awarded against the Indemnified Parties for such Claims or amounts agreed to by the Indemnifying Party in settlement of such Claims. "Expense" means all reasonable costs, as and when incurred, in the defense of any Claims, including without limitation attorneys' fees and the costs of Claims investigation and administration.
(b) The foregoing definition of Claims excludes any Claims which are or may be asserted under the Agreement relating to Confidentiality and ServiceTitan Infringement Claims, both as defined therein, and which the parties agree shall be resolved exclusively under the Agreement.
(c) Ace and its Affiliates are intended third-party beneficiaries of Franchisee’s indemnification obligations.
15. Force Majeure
A party shall neither be held liable nor responsible to the other party, nor be deemed to have defaulted under or breached this EULA, for failure or delay in fulfilling or performing any obligation hereunder (other than an obligation for the payment of money) to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of such party including, but not limited to, fire, floods, embargoes, pandemics or epidemics, war, acts of war, riots, strikes, acts of God, or omissions or delays in acting by any governmental authority (each a "Force Majeure Event").
The party who has been so affected shall make commercially reasonable efforts promptly to give notice to the other party. The party who has been so affected will only be excused from performance of its obligations affected by such Force Majeure Event for as long as such Force Majeure Event continues and such party continues to use commercially reasonable efforts to recommence performance. If the period of nonperformance exceeds thirty (30) days from the receipt of notice, the party whose ability to perform has not been so affected may terminate this EULA by giving written notice to the other party.
Except for assignment to a party’s Affiliate, or in the case of a merger, acquisition or sale of all or substantially all of a party's assets, stock or business, neither party may assign or otherwise transfer any right or obligation set forth under this EULA without the other party’s prior written consent, not to be unreasonably withheld or delayed.
17. Relationship of the Parties
The parties are independent contractors and nothing in this EULA shall be construed as creating a partnership, joint venture, or agency relationship between them, or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other.
ServiceTitan may utilize one or more subcontractors or other third parties to perform its duties under this EULA. ServiceTitan remains responsible for all of its obligations under this EULA, and the acts and omissions of its subcontractors and any other third parties performing under this EULA on ServiceTitan’s behalf as if the acts and omissions of its subcontractors are the acts and omissions of ServiceTitan, including without limitation, for purposes of ServiceTitan’s indemnification obligations hereunder.
19. Governing Law; Venue
This EULA is governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles. Any legal suit, action, or proceeding permitted under this EULA will be instituted exclusively in, and the parties hereby irrevocably and unconditionally submit to the personal and exclusive jurisdiction of, the state courts and federal courts located in New Castle County, Delaware, for resolution of any such legal suit, action, or proceeding permitted under this EULA.
The waiver by either party of any breach of any provision of this EULA does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this EULA will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this EULA.
If any part of this EULA is found by a court of competent jurisdiction to be illegal, unenforceable, or invalid, the remaining portions of this EULA will remain in full force and effect. If any material limitation or restriction on the use of the Service under this EULA is found to be illegal, unenforceable, or invalid, ServiceTitan may, within 30 days of any such finding, elect to terminate your right to use the Service and we will promptly refund to you any pre-paid, unused fees.
22. International Use; Export Control
The Service is intended for use within the United States and Canada. We make no representation that the Service is appropriate or available for use outside of the United States and Canada. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No software (including the Mobile Apps) may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. You certify that you are not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You further certify that you will not export, re-export, ship, transfer or otherwise use the ServiceTitan Technology in any country subject to an embargo or other sanction by the United States, including Iran, Syria, Cuba, Sudan and North Korea and that you will not use the ServiceTitan Technology for any purpose prohibited by applicable export laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses.
23. Disclosures Regarding Third Party Resources
(a) This EULA is between you and us only. In our provision of the Service to you (including the Service Titan Technology), we may choose to use open source software, services, and distribution channels that are provided by third parties we select and which are not parties to this EULA (“Third Party Resources”). Neither party is responsible for or shall be liable for the other party’s use of such Third Party Resources. Each party shall comply with any terms and conditions of such Third Party Resources.
(b) Without limiting the generality of the foregoing, the parties acknowledge and agree as follows:
(i) Disclosure regarding Open Source Software. The Mobile Apps may contain or be provided together with open source software. Each item of open source software is subject to its own license terms, which can be found in the applicable settings, help, legal, notice, or about menu or source files of the Mobile App. If required by any license for particular open source software, ServiceTitan makes such open source software, and our modifications to that open source software (if any), available by written request. Copyrights to the open source software are held by the respective copyright holders indicated therein. The parties acknowledge that Franchisee has no responsibility or liability for ServiceTitan’s use of open source software and any licensing and compliance requirements thereof.
(ii) Disclosure regarding Google-Sourced Software. The following applies to any Mobile App you download from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that this Agreement is between you and Company only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (iii) Google is only a provider of Google Play where you obtained ServiceTitan’s Google-Sourced Software; (iv) ServiceTitan, and not Google, is solely responsible for the Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or this Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to ServiceTitan’s Google-Sourced Software.
(iii) Disclosure regarding Google Maps. Google Maps presented to you through the Service are powered by Google. Your use of Google Maps is subject to the Google Maps Terms of Service, available online at https://www.google.com/intl/en-US_US/help/terms_maps.html, and https://www.google.com/intl/ALL/policies/privacy/index.html, and by using the Service, you are agreeing to be bound by such terms.
Disclosure regarding Apple-Enabled Software. With respect to Mobile Apps that are made available for your use in connection with an Apple-branded product (“Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply. You acknowledge that this Agreement are between you and ServiceTitan only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Mobile App or the content thereof. You may not use the Mobile App in any manner that is in violation of or inconsistent with the “Usage Rules” set forth for the Mobile App in, or otherwise be in conflict with, the “Apple Media Services Terms and Conditions.” Your license to use the Mobile App is limited to a non-transferable license to use the Mobile App on an iOS product that you own or control, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing programs. Apple has no obligation to furnish any maintenance and support services with respect to the Mobile App. Apple is not responsible for any product warranties, whether express or implied by law. If the Mobile App fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the Mobile App, if any, to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Mobile App, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be ServiceTitan’s sole responsibility, to the extent it cannot be disclaimed under applicable law. Apple is not responsible for addressing any claims by you or any third party relating to the Mobile App or your possession and/or use of the Mobile App, including: (a) product liability claims; (b) any claim that the Mobile App fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Mobile App and/or your possession and use of the Mobile App infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Mobile App. Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must comply with applicable third-party terms of agreement when using the Mobile App, e.g., your wireless data service agreement. Please contact us in writing if you have any questions, complaints, or claims with respect to the Mobile App.
Sections hereof concerning the parties’ rights and obligations that operate after termination or expiration, or that are necessary to enforce any rights or obligations, will survive termination or expiration of this EULA, including without limitation Sections relating to Confidentiality, Representations and Warranties, and Indemnification.
25. Entire Agreement
This EULA, including all order summaries, addenda, appendices, and exhibits hereto and incorporated herein, constitutes the entire agreement between the parties regarding the subject matter hereof, and it supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. This EULA may not be modified or waived in whole or part, except in writing and signed by an officer or duly authorized representative of both parties. No employee, agent, or other representative of ServiceTitan has any authority to bind ServiceTitan with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this EULA. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this EULA. ServiceTitan will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this EULA (whether or not it would materially alter this EULA) that is proffered by Franchisee in any receipt, acceptance, confirmation, correspondence, or otherwise, unless ServiceTitan specifically agrees to such provision in writing and signed by an authorized agent of ServiceTitan.
26. Consent to Electronic Communications
(b) By entering into this Agreement, you agree to receive calls and text messages from ServiceTitan and persons acting on our behalf to the telephone number you provided to us. You understand and agree that these calls and text messages may be made using an autodialer, artificial or prerecorded voice, or other automated technology. These communications may include operational communications concerning your account, communications regarding the Service and marketing communications. Standard text messaging rates will apply. Your agreement to receive promotional calls and texts is not a condition of any purchase or of use of the Service.
(c) We and our affiliates and third party service providers may also communicate with you by email and push notifications in the ServiceTitan Mobile Apps.
(d) IF YOU WISH TO OPT OUT OF COMMERCIAL EMAILS FROM SERVICETITAN, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL TEXTS, REPLY “STOP” TO A PROMOTIONAL TEXT OR SEND AN EMAIL TO OPTOUT@SERVICETITAN.COM WITH THE PHONE NUMBER AND YOUR REQUEST. TO OPT OUT OF PROMOTIONAL CALLS, PLEASE MAKE A DO NOT CALL REQUEST DURING ANY CALL YOU RECEIVE, OR CALL US AT (866) 622-0680.
27. Arbitration Agreement
(a) Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” Franchisee agrees that any and all disputes or claims that have arisen or may arise between Franchisee and ServiceTitan, whether arising out of or relating to this Agreement, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Franchisee may assert individual claims in small claims court, if Franchisee claims qualify. Franchisee agrees that, by agreeing to this Agreement, Franchisee and ServiceTitan each waive the right to a trial by jury or to participate in a class action. This Arbitration Agreement includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. Each party’s rights will be determined by a neutral arbitrator. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
(b) Prohibition of Class and Representative Actions and Non-Individualized Relief. Franchisee and ServiceTitan agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both Franchisee and ServiceTitan agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
(c) Pre-Arbitration Dispute Resolution. ServiceTitan is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly by emailing your designated ServiceTitan customer support team. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to ServiceTitan should be sent to ServiceTitan, Inc., 800 N Brand, Ste 100, Glendale, CA 91203, ATTN: LEGAL (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If ServiceTitan and Franchisee do not resolve the claim within sixty (60) calendar days after the Notice is received, ServiceTitan or Franchisee may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by ServiceTitan or Franchisee shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Franchisee or ServiceTitan is entitled.
(d) Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (the “AAA Rules”), as modified by this Arbitration Agreement. Any arbitration hearing will take place at a location to be agreed upon in Washington, D.C. If the parties are unable to agree on a location within Washington, D.C., the determination shall be made by AAA. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. If Franchisee’s claim is for $10,000 or less, ServiceTitan agrees that Franchisee may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If Franchisee’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
(e) Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules, or by statute.
(f) Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
(g) Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (b) above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause (b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
28. Feature-Specific Additional Terms
These Additional Terms govern your use of various features of the Service.
(a) Additional Terms for ServiceTitan Telephony Functionality. If you use telephony services or functionality within the Service, your use of such services and functionality is subject to these additional terms and conditions.
(i) Our charges for telephony services may also include federal universal service, regulatory and administrative charges, and we may also include other charges related to our government costs. ServiceTitan sets these charges; they may also consist of taxes required by law. They are kept by ServiceTitan in whole or in part, and the amounts and what they pay for may be changed by ServiceTitan at any time.
(ii) North American phone numbers you port into the Services are handled in accordance with either the Federal Communications Commission (FCC) or Canadian Radio-television and Telecommunications Commission (CRTC) “local number portability” (LNP) rules. ServiceTitan ports local and toll-free numbers for you to use for call tracking and recording purposes in the Service. Any number that you port to the Service or obtain through the Service, will be owned by you as owner of record. ServiceTitan will not attempt to hold or restrict the transfer of any such number or prevent an authorized port. All numbers that you port into the Service are eligible to be ported out at any time and you remain the owner of record for those numbers while they are hosted through the Service. ServiceTitan does not impose any port in or port out fees.
(iii) EMERGENCY CALLING AND 911.
Limitations of Calls to 9-1-1 and 911 Service
This is an explanation of your responsibilities and ServiceTitan Phones service limitations regarding emergency calls to 9-1-1 (911 Service). The term “911” also includes “Enhanced 911” or “E911,” which is 911 plus some location and call-back functionalities designed to locate callers in an emergency. E911 only works where 911 call centers called Public Safety Answering Points (PSAPs) have installed E911 capable equipment.
As a prerequisite to using any 911 Service, Canadian customers must also review and agree to the 9-1-1 Terms of Service provided to you by ServiceTitan.
Your Responsibility to Provide Location Information. As a condition of utilizing the ServiceTitan Phones service, you must provide the correct physical (civic) address information to ServiceTitan when setting up your Account (hereinafter “Registered Location”). You may update your Registered Location at any time through the ServiceTitan portal. It is important that you keep the Registered Location current and update it whenever you change your location. You are responsible for keeping your Registered Location current and accurate at all times, as well as training any users of your account to update location information as needed. ServiceTitan may rely on whatever location information is available at the time of the call (which may include mobile device geolocation information and/or your Registered Location) to route your call to an appropriate PSAP, and you may be asked for your name, telephone number, and location during an emergency call. You agree that ServiceTitan may, whenever you dial 9-1-1, and without further notice to you, use or disclose personal information, including but not limited to data such as a civic address that you have provided and/or device-based location information (including, but not limited to, horizontal and vertical location coordinates).
General 911 Service Limitations. You acknowledge that circumstances may cause 911 Service to be limited or unavailable, such as:
network outage, network congestion, power outages or other loss of electrical or battery power, the PSAP’s ability or willingness to receive and respond to an emergency call or text message, the device is not located in the United States of America or Canada, and/or other technical limitations.
You further acknowledge that even though ServiceTitan will make commercially reasonable efforts to route your 911 call to the appropriate 911 emergency dispatch center or PSAP, calls may be routed to a PSAP covering a neighboring or distant area due to incorrect location information supplied by you, inaccurate or unavailable routing information, mechanical failure, and error. When you call 9-1-1, tell the responder where you are (i.e., identify the physical location where you can be found).
ServiceTitan completes telephone calls using VoIP technology and is intended primarily for use within the domestic United States and within Canada. VoIP telephony is fundamentally different from traditional telephone service and has inherent limitations that include, but are not limited to, relocation of end user customer premises equipment, use of a non-native telephone number, broadband connection failure, loss of electrical power, and delays that may occur in making a Registered Location available in or through the Automatic Location Information database used to provide location information to PSAPs.
Warnings to end users. You must notify end users of ServiceTitan Phones about the 911 limitations of ServiceTitan Phones as outlined in this Agreement. You acknowledge and will complete all advisory notices and certifications received from ServiceTitan Phones regarding 911 service.
Limitations on Liability. As a provider of emergency communications for purposes of the Federal NET 911 Act, ServiceTitan asserts immunity and other protection from liability under both state and federal law in connection with its provision of 911 dialing service as part of any Internet-based Service. In addition, ServiceTitan disclaims all responsibility for the conduct of local emergency response centers and the national emergency calling center. ServiceTitan does not have any control over any local emergency response center or the national emergency calling center. Therefore, ServiceTitan is not responsible for whether those centers answer calls made using ServiceTitan’s 911 dialing service, how they answer such calls, or how they handle them. ServiceTitan relies on third parties to assist in routing 911 dialing calls to local emergency response centers and/or, to the extent permissible under federal law, to a national emergency calling center. ServiceTitan cannot ensure that your local emergency service provider is capable of handling 911 calls from Internet-based service users. Accordingly, ServiceTitan is neither liable nor responsible if the data used by a third party to route such calls is incorrect or produces an erroneous result. Neither ServiceTitan nor its officers, directors, shareholders, employees, agents or subcontractors may be held liable for any claim, damage, loss, fine, penalty, cost, and/or expense (including, without limitation, any and all attorneys’ fees) by, or on behalf of, any ServiceTitan customer or any third party or user of ServiceTitan’s Service, relating to or arising out of ServiceTitan Phones, including, without limitation, 911 dialing, or any device used in connection with ServiceTitan Phones.
(b) ServiceTitan Payments™ Additional Terms. Your use of ServiceTitan Payments (“Payments”) is subject to the following additional terms and conditions.
(i) PCI DSS Compliance. In the course of using Payments, you will have access to and may collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information. You agree and acknowledge that you shall at all times remain in compliance with Payment Card Industry Data Security Standard ("PCI DSS") requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at your sole cost and expense. ServiceTitan agrees and acknowledges that ServiceTitan is responsible as well for the security of cardholder data that we possess or otherwise store, process, or transmit on behalf of you and to the extent that ServiceTitan could impact the security of your cardholder data environment.
(ii) Indemnification. To the fullest extent permitted by law, you are responsible for your use of Payments, and you will defend and indemnify the ServiceTitan Entities from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with your use of Payments, including, for the avoidance of doubt, any expenses for chargebacks, fines or fees for which ServiceTitan becomes liable for or otherwise incurs.
(iii) Personal Guarantees. At any time or from time to time, ServiceTitan may require that you provide a personal guarantee from a suitable person in order to begin or continue using ServiceTitan Payments. ServiceTitan may at any time and without notice suspend your use or access to ServiceTitan Payments pending the delivery of such a guarantee and, if you refuse to provide or otherwise cannot provide such a guarantee within five (5) business days, ServiceTitan shall be entitled to suspend or terminate your access to ServiceTitan Payments as it deems fit without penalty or liability.
(c) Marketing Pro™ Additional Terms. Your use of ServiceTitan’s Marketing Pro service (“Marketing Pro”) is subject to the following additional terms and conditions.
(i) Compliance with Law. You represent and warrant that your access to and use of Marketing Pro will comply with all applicable laws, rules and regulations, including but not limited to those that relate to privacy and data protection and to the sending of electronic communications. You further represent and warrant that you have a lawful basis for processing and sending your Content and communications to your customers, business contacts or followers who consent to receiving marketing or promotional messages from you or on your behalf (“Contacts”), whether through legally appropriate express consents or otherwise. When using the Service, you may import data, including personally identifiable information, regarding your Contacts (“Contact Data”). You will not provide ServiceTitan or upload to Marketing Pro, or take any actions with respect to, any of your Content or Contact Data for which you do not have a lawful basis for processing, permissions or consents in accordance with applicable privacy and data protection laws, nor information that is illegal or inappropriate. ServiceTitan reserves the right to remove illegal or inappropriate content. You (and not ServiceTitan) are responsible for ensuring that you meet all legal obligations (including notice, consent, and prescribed information and unsubscribe mechanisms) for sending communications to individuals in the jurisdictions where they reside. While Marketing Pro allows you to manage and access consents and other Contact Data, you acknowledge and agree that you, and not ServiceTitan, have sole responsibility for maintaining all records relating thereto. You are solely responsible for determining whether Marketing Pro is suitable for use in light of any laws and regulations that govern your entity, industry, or relationship with your own Contacts, including but not limited to consumer protection, anti-spam, privacy, advertising, intellectual property or other laws. You may not use Marketing Pro for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, the Canadian Competition Act, Canada’s Anti-Spam Legislation, any Canadian Human Rights Code, or other laws that apply to commerce. The guidelines below are examples of practices that may violate this Agreement or applicable law when generating or sending commercial electronic messages (“Emails”) through Marketing Pro:
1. Using non-permission based Email lists (i.e., lists in which each recipient has not explicitly granted permission to receive Emails from you by affirmatively opting-in to receive those Emails);
2. Using purchased or rented Email lists;
3. Using third party email addresses, domain names, or mail servers without proper permission;
4. Sending Emails to non-specific addresses (e.g., email@example.com or firstname.lastname@example.org);
5. Sending Emails that result in an unacceptable number of spam or Unsolicited Commercial email (UCE) complaints (even if the Emails themselves are not actually spam or UCE);
6. Failing to include a working “unsubscribe” link in each Email that allows the recipient to remove themselves from your mailing list;
7. Failing to comply with any request from a recipient to be removed from your mailing list within 10 days of receipt of the request;
9. Disguising the origin or subject matter of any Email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any Email;
10. Failing to include in each Email your valid physical mailing address or a link to that information; and
11. Including “junk mail,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any Email that encourages a recipient to forward the Email to another recipient.
(ii) Third Party Data. Certain functions and features of Marketing Pro make use of data licensed from or owned by third parties (“Third Party Data”). ServiceTitan may charge incremental fees in connection with your access to such Third Party Data. You may use this Third Party Data solely in connection with your use of Marketing Pro and for internal analysis, and you shall not use any such Third Party Data for reproduction, sale, publication, or any other use in relation to any product or service to be provided to any third party, or any other commercial exploitation except as expressly consented to by ServiceTitan. Third Party Data remains the property of its owner, and you will not acquire any proprietary rights in or to the Third Party Data, and you acknowledge that the Third Party Data is a valuable commercial product, the development of which has involved the expenditure of substantial time and money. You acknowledge that some Third Party Data is sourced from public documents or statistical calculations, is provided on an “as is, as available” basis with all faults and defects, and neither the owner/licensee of such Third Party Data nor ServiceTitan makes any warranties, express or implied, including without limitation, those of merchantability and fitness for a particular purpose. Further, neither owner/licensee of such Third Party Data nor ServiceTitan are responsible for errors, omissions, miscalculations, or misrepresentations of value. Any use of or reliance on Third Party Data by you is at your own risk.
(iii) Termination. Upon termination of your Marketing Pro subscription, ServiceTitan will allow you to access your Content for a limited period of 30 days for the purpose of removing all ServiceTitan- provided content from your Content. Subject to the terms and conditions set forth herein, and ServiceTitan’s agreement that all ServiceTitan-provided content (or content derived from ServiceTitan-provided content) has been removed from your Content, ServiceTitan will then permit you to export your Content from Marketing Pro.